Court of Appeal Judgment on the Home Office’s use of paragraph 322 (5) in respect of so called “earning discrepancy” cases

In Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673, the Court of Appeal handed down an important judgment on the use of paragraph 322 (5) to refuse settlement to migrants over alleged tax discrepancies.

All four linked appeals were decided against the Secretary of State. This does not mean that the Appellant’s will be granted indefinite leave to remain but will be given the opportunity to have their cases assessed before an independent Tribunal Judge.

In summary, the main points to take away from the judgement are:

  • Before refusing an application on an allegation of deception under paragraph 322 (5) the Secretary of State must let the applicant know that they are minded to refuse and allow them a chance to submit more information as to why they should not be refused.
  • On receipt of this information, the Secretary of State will then consider:
    • whether the applicant was dishonest.
    • whether, even if dishonest, the applicant’s presence in the UK is undesirable.
    • whether, even if dishonest and undesirable, the applicant should be granted leave for other reasons.
  • Article 8 will typically be a factor given the Applicants length of residence in the UK and therefore the Secretary of State should properly engage with Article 8 within the context of a settlement application.
  • Post decision evidence can be admitted in respect of a Judicial Review claim and therefore Applicants who have an outstanding Judicial Review application should see what further evidence can be adduced to make out their claim.

If you have had an application refused on the basis of paragraph 322 (5) or currently have an outstanding application or Judicial Review challenging the legality of a decision under paragraph 322 (5), please contact Andrew Krisman of Qore Legal (akrisman.qorelegal.co.uk) who will be able to assist you with your case.

 

Andrew previously worked for the Government Legal Department on behalf of the Home Office advising on immigration and migration policy.

 

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